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Monday, April 28, 2008

What next in the Sean Bell case?

I did not follow the bench trial of the three New York City detectives prosecuted for the early-morning shooting death of Sean Bell, an unarmed African-African American man. But like everyone else, I took notice of the judgment of acquittal handed down by New York Supreme Court Justice Arthur Cooperman last week.

So, while I cannot comment on the merits of the decision, I thought I would raise a few questions going forward:

1) I am intrigued by the idea, which I have seen in a couple of places, that this result is less about race than about police and the tendency of the law (and the judges and juries applying the law) to believe police and the resulting difficulty of convicting police officers, especially in shooting cases. Justice Cooperman was explicit that much turned on the greater credibility of defense witnesses (police) than prosecution witnesses (friends of the victim). Of course, a police shooting is statistically more likely to involve an African-American victim than a white victim, so we unfortunately find race just by backing up a couple steps. It still is "about race," but that term takes on more of a sociological than legal context.

2) The acquittal brought out, no surprise, Al Sharpton, acting as family counselor and protest leader. Sharpton called for public protests, including perhaps at Justice Cooperman's home. We often struggle with the question of how to criticize and protest judges on the substance of their decision. How should we balance two conflicting but undefinable concepts: judicial independence (which frees Justice Cooperman to make a decision apparently driven by the evidence, in the face of public opinion) and judicial accountability (the right to criticize and ccall judges to account even for individual decisions that produce injustice). Trial-court judges in New York are elected for 14-year terms and must stand for re-election, although Cooperman is expected to retire at the end of his current term, so he will not stand for reelection.

What do we think of staging a protest rally outside a judge's home? And why go to his home? Residential picketing usually targets doctors who work at abortion clinics, with the goal seemingly a combination of harassment and public shaming in front of the neighbors. Would the same technique work if the goal is to call attention to a judge's unjust ruling?

3) The defendants chose a bench trial (New York follows the majority approach that choice of criminal jury rests entirely with the defendant), which caused some speculation as to their strategy. One explanation was Cooperman's pending retirement and consequent insulation--or lack of accountability, depending on your perspective. One of Sharpton's more interesting comments during a weekend protest was that the three officers should have been required to have a jury trial, because they were public officials being prosecuted for action in the performance of their public duties.

I reject Sharpton's suggestion, although it reflects something interesting about how the public perceives juries and how that perception probably depends on which side in a case an individual supports. The perception is that juries are easily fooled, so a defendant who is going to obfuscate and hide the truth will want a jury, which will be less able than a judge to see through the smoke and mirrors. I heard this argument made in the early days of the OJ prosecution. Here, Sharpton suggests the opposite--that the officer defendants chose a bench trial because a jury would be better able than the judge to see through their (in Sharpton's view unbelievable) story.

I also think Sharpton's notion that the officers should have been "required to face a public jury" reflects a very different (and, I believe, incorrect) conception of the jury right. The jury right historically reflects an accused's right to choose to have the voice of the community, rather than the State, pass judgment on him--based on our distrust of the State. Sharpton would turn the right on its head, making it the community's right to pass judgment on those accused of breaching the community peace, a right that trumps any choices by the defendant himself. The jury is not about the individual's right to limit government in bringing its power to bear on the individual; it is about the community's right to prevent government (the judge) from ignoring the will of the community in a particular criminal case by guaranteeing that the community's voice will be heard, even if the individual immediately subject to the jeopardy of the criminal process does not want to hear that voice.

4) The next question in the case will be whether DOJ decides to pursue federal civil rights charges against the three officers. In some cases of excessive force in which the officers have been acquitted in state court, the feds have pursued charges (the Rodney King officers being the most obvious example), in other cases they have chosen not to pursue anything.

Under the Petite Policy, DOJ may pursue a successive prosecution only where the matter involves a substantial federal interest, the interest will remain unvindicated following the state prosecution, and the government believes admissible evidence is sufficient to obtain and sustain a federal conviction. For purposes of the second prong, DOJ presumes that the first prosecution (regardless of outcome) did vindicate that federal interest. The presumption can be overcome in a number of enumerated circumstances. Where the prior prosecution ended in acquittal, these circumstances include where the state judgment was a product of court/jury nullification; where there was corruption or some other defect in the integrity of the first trial; or where the state-court acquittal resulted from a failure of an element that will not be an element of the federal charge. And regardless of the outcome in the state prosecution, the presumption also can be overcome where: 1) the violation implicates a compelling federal interest, especially an enduring national priority; 2) the case involves egregious conduct, especially involving loss of life; and 3) the result in the prior prosecution was manifestly inadequate in light of the federal interests involved.

I do not know enough about this case or the internal workings at DOJ to predict what they will do. But it is not obvious the policy permits a federal prosecution here. The outcome rested substantially on Justice Cooperman's determinations as to the credibility of prosecution witnesses, a problem likely to plague a federal prosecution--and there is no "objective" videotape a la Rodney King. I have not seen any suggestion that the judge engaged in nullification here or that the process was otherwise compromised. Reports prior to the verdict described Justice Cooperman as tough on defendants, willing to convict police officers, and knowledgeable about the law.

Of course, this is a high-profile incident that has the public (or at least activists) riled up and angry at the perceived racially motivated crime and racially motivated unjust acquittal. And the conduct sounds egregious--50 bullets fired at an unarmed man by multiple officers. But should that alone warrant a federal prosecution?